A “Right to be Forgotten”

Readers may be interested in a past decision of the Italian Court of Cassation adjudicating whether former convicted terrorists have a “right to be forgotten.” The decision was handed down on June 26, 2013 and can be accessed here. The Court ruled that a former member of a terrorist organization was entitled to a right to be forgotten under the Italian constitutional right to privacy. This Italian citizen had taken defamation proceedings against a local newspaper which had arbitrarily linked his past conviction on terrorism offences to a recent finding of weapons from a dismantled terrorist group. Notably, the judgment was based on the ground that journalists are not entitled to revive pejorative labels of “terrorist” for someone who had been convicted many decades previously and had fully served out his sentence. The Court held that contemporary newspaper commentary must have direct and meaningful link with the recent events.

Relatedly, in January 2012 the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, affirmed the European Commission’s proposal to create a extended privacy right—the “right to be forgotten.” The right, long debated in Europe, has finally been codified as part of a broad new proposed data protection regulation. Commentators have paid significant attention to the free speech implications this newly codified European position, but less attention has been directed at the implications in the security and anti-terrorism context. The Court of Cassation decision points to a sharping articulation of this particular privacy right, putting it at odds with the broad thrust of media positioning towards former terrorists. The privacy balance in Europe is not only relevant to our conversation on data collection and retention but also extends to actions and categories that follow from conviction for terrorist acts. It suggests that the right to be forgotten is far deeper and more extensive than many may imagine.

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About the Author(s)

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland. You can follow her on Twitter (@NiAolainF).